October 7, 2009
Pursuant to Elections Code Section 9005, we have
reviewed a proposed constitutional amendment initiative related to
marriage (A.G. File No. 09‑0026).
Background
Marriage. California law defines
marriage as a personal relationship arising out of a civil contract
between two consenting adults. In addition, state law requires the
issuance of a license from the county clerk's office and the performance
of a ceremony for a marriage to be valid and recognized. In a statewide
election in November 2008, voters passed Proposition 8, which amended
the State Constitution to provide that only marriage between a man and a
woman is valid or recognized in California.
County clerk's offices are authorized to collect
fees for the issuance of marriage licenses. State law dedicates a set
portion of these fees for the support of domestic violence shelters and
family reconciliation services, among other purposes.
Divorce and Legal Separation. State
law allows a marriage to be ended only by one of the following ways: (a)
the death of one of the parties, (b) a dissolution of marriage, commonly
known as divorce, or (c) a nullification of the marriage. A marriage may
be nullified in specific instances such as those involving marriages
between blood relatives, those involving parties under the age of 18, or
those in which consent to marriage was obtained by fraud or force.
A married couple can seek court approval for a
legal separation, which results in the division of assets and custody as
in a divorce but does not return the parties to the legal status of
being unmarried. Married and legally separated individuals cannot
remarry under state law, while divorced individuals or those whose
spouse has died may do so.
Proposal
This measure amends the Constitution to prohibit
any party to marriage from being restored to the state of an unmarried
person during the other party's lifetime unless the marriage can be
nullified under state law. This measure would in effect remove the
option of divorce and make nullification or the death of a spouse the
only options for ending marriage in this state.
Fiscal Effects
We have identified the following major fiscal
impacts of this measure:
Net Reduction in Court Costs. This
measure would reduce court workload for divorce cases and, therefore,
reduce state costs for the support of the court system. Currently,
parties filing for divorce pay a civil court fee of $350. According to
the Administrative Office of the Courts, these fee revenues are far less
than the administrative costs of the average divorce proceeding.
Therefore, the reduction in the number of divorce cases that would
result from this measure means that the state's court system would have
lower revenues but substantially lower workload and costs overall. This
could lead to savings of up to hundreds of millions of dollars annually.
These net savings would be offset to the extent that the courts
redirected these available resources to address any pending backlog of
court cases.
Reduced Purchases of Goods and Services
From Fewer Weddings. This proposal would reduce the number of
marriages performed in the state because married parties would no longer
be permitted to divorce and remarry. Also, the change in state law so
that divorce would no longer be recognized might deter some persons from
getting married the first time. These changes may reduce various state
and local tax revenues as it would likely reduce purchases of goods and
services related to the performance of weddings—for example, if it
reduced the amount of tourism in the state attributable to weddings.
Potential Population-Related Effects.
It is possible that this measure could, over time, result in a lower
overall state population than would otherwise be the case by encouraging
out-migration and discouraging in-migration to California. First, this
proposal may encourage individuals wishing to divorce their spouses to
move out of the state. Second, married couples or singles planning to
eventually be married may choose not to move to California if they would
no longer have the option of divorcing should future problems arise. The
magnitude of these potential effects on the size of the state's
population over time is unknown, and thus could result in both (1) a
reduction in the collection of state and local tax revenues and (2) a
reduction in the overall level of state and local government spending on
governmental services.
Reduction in Marriage License Revenues.
For the reasons noted above, this measure would result in fewer
marriages and, therefore, a decrease in the collection of marriage
license fees by county clerk's offices. In most cases, this is unlikely
to have a significant fiscal effect on county clerk's offices, as
counties are authorized to adjust marriage license fees to cover their
costs. However, this would reduce the funding provided from marriage
license fees to domestic violence shelters and family reconciliation
services. If the number of marriage licenses issued were reduced by
half, for example, these programs would lose roughly $1 million
annually.
Summary of Fiscal Effects
We estimate that this measure would have the
following major fiscal effects:
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